New Governance and the EU Courts : The Experimentalist Architecture of Judicial Decision-Making

The dissertation examines the role of the EU courts in new governance. New governance has raised unprecedented interest in the EU in recent years. This is manifested in a plethora of instruments and actors at various levels that challenge more traditional forms of command-and-control regulation. New governance and political experimentation more generally is thought to sap the ability of the EU judiciary to monitor and review these experiments. The exclusion of the courts is then seen to add to the legitimacy problem of new governance. The starting point of this dissertation is the observation that the marginalised role of the courts is based on theoretical and empirical assumptions which invite scrutiny. The theoretical framework of the dissertation is deliberative democracy and democratic experimentalism. The analysis of deliberative democracy is sustained by an attempt to apply theoretical concepts to three distinctive examples of governance in the EU. These are the EU Sustainable Development Strategy, the European Chemicals Agency, and the Common Implementation Strategy for the Water Framework Directive. The case studies show numerous disincentives and barriers to judicial review. Among these are questions of the role of courts in shaping governance frameworks, the reviewability of science-based measures, the standing of individuals before the courts, and the justiciability of soft law. The dissertation analyses the conditions of judicial review in each governance environment and proposes improvements. From a more theoretical standpoint it could be said that each case study presents a governance regime which builds on legislation that lays out major (guide)lines but leaves details to be filled out at a later stage. Specification of detailed standards takes place through collaborative networks comprising members from national administrations, NGOs, and the Commission. Viewed this way, deliberative problem-solving is needed to bring people together to clarify, elaborate, and revise largely abstract and general norms in order to resolve concrete and specific problems and to make law applicable and enforceable. The dissertation draws attention to the potential of peer review included there and its profound consequences for judicial accountability structures. It is argued that without this kind of ongoing and dynamic peer review of accountability in governance frameworks, judicial review of new governance is difficult and in some cases impossible. This claim has implications for how we understand the concept of soft law, the role of the courts, participation rights, and the legitimacy of governance measures more generally. The experimentalist architecture of judicial decision-making relies upon a wide variety of actors to provide conditions for legitimate and efficient review.

Community-based organizations on Lake Victoria: a lesson from the Tweyambe Fishing Enterprise in Muleba District, Kagera Region, Tanzania

This paper is aimed at government, non-government organizations, intergovernmental organizations and the general public as they work toward the development of their individual strategies and action plans. It has been recognized that community-based organizations have a particular relevance to the pursuit of sustainable resource management and may well contribute to the foundations of self-sustenance. Women on Lake Victoria, Tanzania presently face great challenges within the fishery. These include the lack of capital, interference by men, theft of fishing gear, time constraints and socio-cultural problems. In recent years, the fish trading and marketing sectors of the fishery, which have traditionally been dominated by women, have seen large incursions by male entrepreneurs. This move has endangered the role of women within the fishery. This paper focuses on the Tweyambe Fishing Enterprise (TFE), a well-known women's group based in Kasheno village in the Muleba District of Kagera Region in northwestern Tanzania. Inhabitants from the Haya ethnic group who make up some 95% of the population of Kagera Region dominate this village. The TFE has a series of initiatives aimed towards ecologically sound self-development

A relação entre o público e o privado no sistema de saúde brasileiro: repensando o papel do Estado.

Este estudo analisa o papel do Estado no contexto do Sistema de Saúde Brasileiro, sob a ótica das relações público/privadas, usando como contraponto experiências internacionais, particularmente as reformas ocorridas nos países cêntricos. Parte da análise da teoria Keynesiana para identificar não só um papel a ser desempenhado pelo Estado para além da função anticíclica, como também para situar historicamente o nascimento dos sistemas de proteção social de cunho universalista na Europa. A inflexão sofrida no sistema capitalista nos anos 70s levou à reversão nas orientações político-ideológicas que culminaram em propostas de introdução de mecanismos de mercado nos sistemas de proteção social e de retração do Estado. Para entender o desenho de Estado que daí emerge, são apresentados e analisados os fundamentos conceituais da regulação e sua aplicação frente às especificidades do mercado de serviços de saúde. A apresentação da experiência internacional, particularmente o delineamento das motivações das reformas empreendidas e os resultados alcançados, é feita com o objetivo de contrapor posteriormente, o que é específico no Brasil na convivência público/privado. A reflexão sobre o desenvolvimento do Sistema de Saúde no Brasil passa pela sua evolução no período entre a criação das Caixas de Aposentadoria e Pensão e a Constituição Federal de 1988, para recolher particularidades na relação entre o Estado e o Mercado e, ao mesmo tempo, mostrar o momento de rompimento com o modelo de proteção, baseado no seguro social que acompanha o país neste período. As dificuldades na concretização do conceito de universalidade conforme definido na Constituição são analisadas a partir da extemporaneidade da mudança de modelo e do viés privatista, que acompanha o sistema de saúde no Brasil. As contradições geradas pelas interfaces público/privadas na saúde são exploradas sob o enfoque da inexistência de uma delimitação de espaços de atuação dos mesmos, mas, principalmente, pelo foco do financiamento. As principais conclusões se referem à constatação de que a permissividade do Estado no avanço e apropriação privada de recursos e espaços públicos, ou ainda na ampliação da mercadorização da saúde, dificulta a concretização do conceito de universalidade no atendimento à assistência à saúde. Finalmente, o estudo delineia o conflito de interesses dos atores envolvidos no sistema, que dificulta a capacidade de governança do Estado Brasileiro, mas aponta para a necessidade de revisão das bases da relação Estado versus Mercado e a re-definição da sociedade quanto ao tamanho que deseja dar à iniciativa privada no âmbito da saúde.

Collaborative governance assessment

This Guidance Note presents a simple approach to analyzing the governance context for development of aquatic agricultural systems; it is intended as an aid to action research, and a contribution to effective program planning and evaluation. It provides a brief introduction to the value of assessing governance collaboratively, summarizes an analytical framework, and offers practical guidance on three stages of the process: identifying obstacles and opportunities, debating strategies for influence, and planning collaborative actions.

Getting it right: incorporating social aspects into MPA planning and implementation

This brochure summarizes a series of case studies done in nine countries—Brazil, India, Indonesia, Mexico, Senegal, South Africa, Spain,Tanzania and Thailand—on the role of communities in the planning and implementation of marine protected areas (MPAs). The studies demonstrate that communities can be powerful allies in efforts for conservation and management of coastal and marine resources. They also underline the need for systematic attention, capacity building, funding and other resources for effective implementation of Programme Element 2 on governance, participation, equity, and benefit sharing of the Programme of Work on Protected Areas (PoWPA) of the Convention on Biological Diversity (CBD).

Ghana coastal fisheries governance dialogue: developing options for a legal framework for fisheries co-management in Ghana

The Third National Fisheries Governance Dialogue was a direct follow up on the Second National Fisheries Governance Dialogue held in Elmina in April 2012. It was agreed at the Second dialogue that co-management was the way forward for sustaining Ghana’s fisheries and that its success would depend on a supportive legal framework. The two day dialogue meeting consisted of four key presentations focusing on: the current status of fisheries in Ghana; co-management as a fresh approach to fisheries; outcomes from the regional stakeholder consultations on co-management structure; and outcomes from the research on the legal framework. The presentations were followed by four breakout groups that generated ideas for co-management structures for different species namely pelagic fish or Sardinella, near shore demersal, Volta lake, and lagoons and estuaries. Key elements for co-management structures and elements of a co-management legal framework were later identified during plenary discussions.

Marine protected areas and small-scale fisheries in South Africa: promoting governance, participation, equity and benefit sharing

This monograph studies the progress achieved by conservation partners in South Africa on the implementation of the Convention on Biological Diversity (CBD) Programme Element Two components of governance, participation, equity and benefit sharing, from the perspective of small-scale fishing communities. It explores the strategies and mechanisms used by different authorities to create the conditions whereby local communities can benefit from marine protected areas (MPAs), of which South Africa has gazetted 24, highlighting examples of best practice. The monograph will be useful for researchers, scientists, fishworker organizations, environmentalists and anyone interested in the protection of marine biodiversity and the promotion of sustainable fisheries management.

Corporations and corporate governance: what do these concepts mean for multinational corporate power and social responsibility?

International Journal of Liability and Scientific Enquiry 2007 - Vol. 1, No.1/2 pp. 29 - 49 RAE2008

The Power of Partnerships in Global Governance

Abrahamsen, Rita, 'The Power of Partnerships in Global Governance', Third World Quarterly (2004) 25(8) pp.1453-1467 RAE2008

History repeats itself: The failure of rational choice models in corporate governance

Marnet, Oliver, 'History repeats itself: The failure of rational choice models in corporate governance', Critical Perspectives on Accounting (2005) 18(2) pp.191-210 RAE2008

Initial losses, corporate governance and earnings management

This thesis examines the relationship between initial loss events and the corporate governance and earnings management behaviour of these firms. This is done using four years of corporate governance information spanning the report of an initial loss for companies listed on the UK Stock Exchange. An industry- and sizematched control sample is used in a difference-in-difference analysis to isolate the impact of the initial loss event during the period. It is reported that, in general, an initial loss motivates an improvement in corporate governance in those loss firms where a relative weakness existed prior to the loss and that these changes mainly occur before the initial loss is announced. Firms with stronger (i.e. better quality) corporate governance have less need to alter it in response to the loss. It is also reported that initial loss firms use positive abnormal accruals in the year before the loss in an attempt to defer/avoid the loss — the weaker corporate governance the more likely is it that loss firms manage earnings in this manner. Abnormal accruals are also found to be predictive of an initial loss and when used as a conditioning variable, the quality of corporate governance is an important mitigating factor in this regard. Once the loss is reported, loss firms unwind these abnormal accruals although no evidence of big-bath behaviour is found. The extent to which these abnormal accruals are subsequently unwound are also found to be a function of both the quality of corporate governance as well as the severity of the initial loss.

The contribution of enterprise systems to core capabilities: the case of asset lifecycle management in the utilities sector

The desire to obtain competitive advantage is a motivator for implementing Enterprise Resource Planning (ERP) Systems (Adam & O’Doherty, 2000). However, while it is accepted that Information Technology (IT) in general may contribute to the improvement of organisational performance (Melville, Kraemer, & Gurbaxani, 2004), the nature and extent of that contribution is poorly understood (Jacobs & Bendoly, 2003; Ravichandran & Lertwongsatien, 2005). Accordingly, Henderson and Venkatraman (1993) assert that it is the application of business and IT capabilities to develop and leverage a firm’s IT resources for organisational transformation, rather than the acquired technological functionality, that secures competitive advantage for firms. Application of the Resource Based View of the firm (Wernerfelt, 1984) and Dynamic Capabilities Theory (DCT) (Teece and Pisano (1998) in particular) may yield insights into whether or not the use of Enterprise Systems enhances organisations’ core capabilities and thereby obtains competitive advantage, sustainable or otherwise (Melville et al., 2004). An operational definition of Core Capabilities that is independent of the construct of Sustained Competitive Advantage is formulated. This Study proposes and utilises an applied Dynamic Capabilities framework to facilitate the investigation of the role of Enterprise Systems. The objective of this research study is to investigate the role of Enterprise Systems in the Core Dynamic Capabilities of Asset Lifecycle Management. The Study explores the activities of Asset Lifecycle Management, the Core Dynamic Capabilities inherent in Asset Lifecycle Management and the footprint of Enterprise Systems on those Dynamic Capabilities. Additionally, the study explains the mechanisms by which Enterprise Systems sustain the Exploitability and the Renewability of those Core Dynamic Capabilities. The study finds that Enterprise Systems contribute directly to the Value, Exploitability and Renewability of Core Dynamic Capabilities and indirectly to their Inimitability and Non-substitutability. The study concludes by presenting an applied Dynamic Capabilities framework, which integrates Alter (1992)’s definition of Information Systems with Teece and Pisano (1998)’s model of Dynamic Capabilities to provide a robust diagnostic for determining the sustained value generating contributions of Enterprise Systems. These frameworks are used in the conclusions to frame the findings of the study. The conclusions go on to assert that these frameworks are free - standing and analytically generalisable, per Siggelkow (2007) and Yin (2003).

Analysis of institutional arrangements and common pool resources governance: the case of Lake Tana sub-basin, Ethiopia

Although Common Pool Resources (CPRs) make up a significant share of total income for rural households in Ethiopia and elsewhere in developing world, limited access to these resources and environmental degradation threaten local livelihoods. As a result, the issues of management, governance of CPRs and how to prevent their over-exploitation are of great importance for development policy. This study examines the current state and dynamics of CPRs and overall resource governance system of the Lake Tana sub-basin. This research employed the modified form of Institutional Analysis and Development (IAD) framework. The framework integrates the concept of Socio-Ecological Systems (SES) and Interactive Governance (IG) perspectives where social actors, institutions, the politico-economic context, discourses and ecological features across governance and government levels were considered. It has been observed that overexploitation, degradation and encroachment of CPRs have increased dramatically and this threatens the sustainability of Lake Tana ecosystem. The stakeholder analysis result reveals that there are multiple stakeholders with diverse interest in and power over CPRs. The analysis of institutional arrangements reveals that the existing formal rules and regulations governing access to and control over CPRs could not be implemented and were not effective to legally bind and govern CPR user’s behavior at the operational level. The study also shows that a top-down and non-participatory policy formulation, law and decision making process overlooks the local contexts (local knowledge and informal institutions). The outcomes of examining the participation of local resource users, as an alternative to a centralized, command-and-control, and hierarchical approach to resource management and governance, have called for a fundamental shift in CPR use, management and governance to facilitate the participation of stakeholders in decision making. Therefore, establishing a multi-level stakeholder governance system as an institutional structure and process is necessary to sustain stakeholder participation in decision-making regarding CPR use, management and governance.